Sunday, 29 August 2004

Putting the Con in Constitution

The governmental leaders of Europe will gather this weekend, along with aides, mistresses and varied leeches upon the tax payers (assuming that those classes are mutually exclusive), to attempt agreement upon the new European Union Constitution. I am not sure which to pray for: a failure to agree and subsequent collapse of the idea, or an agreement so that we can then get on with voting the thing down in referenda across the continent. For the basic document itself is hopeless, a mish mash of every semi-thought that evanesced across the synapses of its octogenarian progenitor, Giscard d’Estaing, and his merry committee of statist political pygmies.

Written constitutions are difficult things as those in the US have found out over the lifespan of theirs, the longest running in the world. People are still filling libraries with learned papers on the real meaning of “cruel and unusual” or “militia” after two centuries and it is only 34 years since the Justices looked into the shadows to find that widely derided, as a piece of legal reasoning, right to privacy in Roe v. Wade. One of the recurring strands of Constitutional scholarship has been attempting to work out what the writers themselves thought they meant when they used a certain word or phrase. Reference is made to such things as the Federalist Papers and other contemporary writings to see just what the framers thought they were saying with phrases such as “reasonable” and “search and seizure”. Why bring up such obvious points to a well educated and knowledgeable readership such as yourselves? To apply the same reasoning to this dog’s breakfast of a document that will be discussed at the weekend.

Article 3.3 states in part “The Union shall work for the sustainable development of Europe” and 3.4 “It shall contribute to peace, security, the sustainable development of the earth,” and while those may be overly truncated quotes you really don’t want to read more of the 200 odd pages, just trust me on that one. The mention of sustainable development twice in as many clauses would make it seem an important point to the writers, one that will be part of the keystone of the new Europe. Which would be fine if we all knew what it meant of course.

If you were to conduct a survey of the average man in the street on the meaning of such sustainable development, you would I am sure, get a median answer of something like “Don’t poison the grandkids” with the more biblically aware adding “unto the seventh generation” perhaps. That’s after you have filtered out all responses which contain the word “Viag.ra” of course. And it would be on that basis that people would think it an entirely reasonable addition to the constitution, the basis upon which they might vote for it.

Yet if we actually apply the US methods of constitutional scholarship we find something rather different. Take, for example, from the UK, The Prime Minister’s Sustainable Development Commission. This delightful body is chaired by Jonathan Porritt, yes, he of Friends of the Earth infamy, so we might suspect that their definition is a little less rational. (As an aside their latest report to the Prime Minister was decorated with emoticons. No doubt their pencils carry big plastic flowers and the i in Porritt has a nice heart shape above it.) They place great emphasis on how a continuing reduction in income inequality is a necessary part of sustainable development. There are other measures they use which one would not normally associate with the be nice to bunnies crowd but stick with this one. It will now be part of the constitution that we must strive and work towards a decrease in income inequality.

We cannot reopen the debate at some future date, cannot question whether perhaps a little inequality is a necessary price of a dynamic society, cannot ask just how much equality we have to move towards, cannot even reveal our true colors: that this writer wants inequality so that he can have more than the peons. On a less flippant note we have in fact just ruled a large part of political and economic debate verboten. It is a basic although often unacknowledged part of the left/right divide in politics and the respective views of economic policy: that, yes, it may well be unfair that inequality of outcome exists yet this seems to be an inescapable part of a flexible and growing economy, one which over time makes everyone better off. If one is honest, which side of that left/right divide one resides is based upon the relative values one places on current unfairness and future greater wealth.

We are all aware of just which side we are on, of course, yet I would hope that we all also agree that it is and should be part of the normal daily political conversation, something which we can change as we wish, something that is flexible, not carved in stone into the constitution.

Perceptive readers of these pages may have noted that I am no great lover of the European Union as it stands, the insane insistence that a free market requires rules on the curvature of bananas, that the agricultural system provides $960 per cow per year (three times what the poorest one billion of our fellow humans live on), that every nook and cranny of our lives must be both proscribed and prescribed by an arrogant and self serving army of ignorants who have been unable, for an incredible nine years, to convince the auditors to sign off on the accounts. Yet all of these are minor, trivial even, for a change in electoral fortunes, a change in those who manage the addlepates will change these absurdities.

We cannot change a constitution so easily and so should strive to make sure that the rules are general, that they describe not what we must do, nor what we are allowed to do, but the things that we will allow government to do in our name and the rules about what they may not do to us. I would submit that forcing the entire continent into an economy where equality of outcome is a legal necessity in the name of sustainable development is a little too, what, prescriptive? Insanely detailed? Underhand even? What is really appalling is that I have chosen just one minor detail from the whole thing. Every other line throws up concerns like this.

So thus my confusion over what to pray for: collapse now or agreement and then beat it at the ballot box, for I am unshakably convinced that this constitution is the worst set back for freedom in Europe since Lenin turned up at the Finland Station.

By Tim Worstall

Tim Worstall is a TCS columnist. You can find more of his writing at

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